My landlord is deducting 800.00 from my security deposit because I was
late on my rent checks.I never received a letter or an intent to
charge me a late payment or 10% of the monthly rent.Is is new york law
that the landlord has to put his intent in writing?

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Request for Question Clarification by tar_heel_v-ga on 25 Oct 2002 07:29 PDT

Did you pay your rent and all associated late fees?  In your lease,
does it state anything about late fees or being able to use your
security deposit for unpaid rent or fees?  Do you live in a
rent-control building?

As my researcher colleague, tar_heel_v noted, lulutemp, your first
recourse should be a review of your lease, if you have one, to see if
there are any provisions about late fees.  But even if you don't have
a lease, the rent security deposit provisions of the New York State
General Obligations Law (GOL), which affects all New York State
tenants, still apply.

Here's what I gleaned from a Community Training Resource Center (CTRC)
fact sheet from TenantNet.com, a web site specifically focused on
residential tenant issues in New York City and New York State. I've
also provided relevant excerpts from "The Tenant's Rights Guide",
published by The Office of the New York State Attorney. Emphasis
*asterisks like this* are mine...

From "The Tenant's Rights Guide"...

"...Virtually all leases require tenants to give their landlords a
security deposit. The security deposit is usually one month's rent.
The landlord must return the security deposit, less any lawful
deduction, to the tenant at the end of the lease or within a
reasonable time thereafter. A landlord may use the security deposit:
*(a) as reimbursement for the reasonable cost of repairs beyond normal
wear and tear, if the tenant damages the apartment; or (b) as
reimbursement for any unpaid rent."*

http://www.oag.state.ny.us/realestate/guide_intro.html#6

From the CTRC fact sheet 

RENT SECURITY DEPOSITS

"A rent security deposit is an amount of money, separate from the rent
itself, collected from the tenant and held by the landlord as security
against loss due to the misdeed of the tenant... *At the end of the
tenancy, the landlord may claim all or a portion of the rent security
deposit to cover unpaid rent or damage to the rented property caused
by the tenant beyond "normal" wear and tear.* Rent security deposits
are authorized and regulated by the New York State General Obligations
Law (GOL), which affects all New York State tenants. The GOL also
contains special provisions for tenants in apartments subject to the
Rent Control and Rent Stabilization Laws."

"...Landlords sometimes collect a rent security deposit without giving
a lease. Since the tenant would then have no documentation of the
deposit, the tenant should take care to get a receipt clearly showing
that a deposit was given. *Even without a lease, the rent security
deposit provisions of the GOL
apply.*

http://www.tenant.net/Rights/CTRC/ctrcf006.txt

So, it appears that unless you signed a lease specifically agreeing to
any late payment fees being deducted from your security deposit, or
that your rent isn't fully paid-to-date, your landlord should not be
deducting those fees from your security deposit. So, what's your
recourse?

1) Try to resolve the issue with your landlord first. If you haven't
already done so, you should provide your landlord with a vacate date
and include a demand for the return of the full security deposit.  You
may have some leverage with the landlord if he or she hasn't put your
security deposit in a separate bank account, interest-bearing, if
appropriate. According to the New York State GOL, "A landlord may not
commingle (mix) security deposit moneys with his own; if he does, a
tenant has the right to ask a court to rule that, as such, the
landlord has converted the trust moneys to personal use and that he,
the landlord, should lose the right to retain a security deposit."

2) Contact The New York State Attorney General's Office for help under
the General Obligations Law, Article 7. The New York State Department
of Law, headed by the Attorney General (AG), accepts tenant complaints
involving security deposits. After a tenant files a complaint on their
form, the AG will contact the landlord, providing him with the
opportunity to reply. The Attorney General's approach is to mediate a
resolution by informing the landlord of the obligations of the law and
the AG's authority to enforce the law."

A landlord who has no damage claim against a former tenant, and who is
merely trying to keep the deposit, will often respond to this
pressure.

ATTORNEY GENERAL'S INFORMATION & COMPLAINT LINE:
1-800-771-7755

ATTORNEY GENERAL'S OFFICES

THE CAPITOL
Albany, New York 12224 (518) 474-5481
120 Broadway
New York, NY 10271 (212) 416-8345


REGIONAL OFFICES

44 Hawley Street, 17 FL
Binghamton, New York 13901-4433
(607) 721-8771
234 Main Street
Poughkeepsie, New York 12601
(914) 485-3920

65 Court Street
Buffalo, New York 14202
(716) 847-7184

144 Exchange Boulevard
Rochester, New York 14614
(716) 546-7430

300 Motor Parkway
Hauppauge, New York 11788
(516) 231-2401

615 Erie Boulevard West
Syracuse, New York 13204
(315) 448-4848


211 Station Road, 6th Fl.
Mineola, New York 11501
(516) 248-3300

207 Greene Street, Rm. 508
Utica, New York 13501
(315) 793-2444

Adam Clayton Powell, Jr.
State Office Building
163 West 125th Street
New York, NY 10027
(212) 961-4475

317 Washington Street
Watertown, New York 13601
(315) 785-2225

70 Clinton Street
Plattsburgh, New York 12901
(518) 562-3282


3) If all else fails, consider Small Claims Court.  According to
TenantNet.com, "Small Claims Court has jurisdiction over disputes and
claims involving amounts up to $2,000. Such claims include unreturned
rent security
deposits. The court's process is simple, a lawyer is not required and
cases are heard in the evening. Filing a Small Claims summons costs
about five dollars, and notice of the summons is sent by the court to
the landlord, telling him of the claim and the date of the hearing.

Compared to all other strategies, Small Claims Court may be the most
effective. Just receiving a summons may induce the landlord to return
all or a portion of the deposit. If not, there will be an appearance
before a judge or arbitrator, (landlord's choice; an arbitrator speeds
the process, but the right of appeal is waived). If the landlord runs
the building as a corporation, he must appear represented by an
attorney. This can be expensive and may motivate him to return the
security deposit."

Hope this helps.  Best of luck!

regards,

rico

Search strategy: "tenants rights" New York"

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Request for Answer Clarification by lulutemp-ga on 25 Oct 2002 11:25 PDT

I paid all my rent,there was a clause in the lease about 50.00 or 10%
late fee,however my landlord never asked for any payment.He expressed
that the checks be on time only.It was not a rent controlled
building,it was a sublease in a coop.He never mailed me the original
lease.To activate the late fee portion of the lease does he have to
put these intentions clearly in writing every month?The rent is
paid,the apt is not damaged,he never sent me any bill for late fees
and instead of charging me 50dollars per month for 8 months he is
charging me double-(which I gather is the 10%)I read that in ohio
,chicago,is it illegal for a landlord to withdraw money from security
deposits if the rent is paid and no damage is done,in those states one
can sue for double the amount.But I can't find any details with new
york renters laws.My landlord now is rude,soo I wanted this question
answered prior to finding an attorney.I heard from word on the street
that a landlord has to send you a letter demanding the late fees
everytime you are late because it is unlawful to hold the deposit. 
thanks....

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Clarification of Answer by rico-ga on 25 Oct 2002 13:20 PDT

Unfortunately, as I noted in my answer, the current New York General
Obligations Law simply states, "The landlord must return the security
deposit, less any lawful deduction, to the tenant at the end of the
lease or within a
reasonable time thereafter. A landlord may use the security deposit:
(a) as reimbursement for the reasonable cost of repairs beyond normal
wear and tear, if the tenant damages the apartment; or (b) as
reimbursement for any unpaid rent."  

I think the key here would be the phrase, "less any lawful deduction."
I'd suggest that an attorney and/or Small Claims Court would need to
review the terms of the lease you signed to make that determination.

I understand from what you noted that you don't have a copy of the
lease. I'd suggest sending a letter to your landlord demanding a copy,
and then determining whether the security deposit was in fact termed a
"security deposit" or was called something else. A security deposit is
by definition "held by the landlord as security against loss due to
the misdeed of the tenant." According to my reading of the New York
General Obligations Law, security deposits can only be kept in New
York against unpaid rent or damage. The landlord might be in violation
of New York General Obligations Law for witholding and/or deducting
anything from a security deposit that wasn't related to unpaid rent or
damages.  Again, however, only aq legal professional could determine
that for you.

As to your specific questions, I did some more research, and can find
nothing that indicates that a landlord in New York State must put
his/her intentions concerning collecting late fee payments in writing
each month. It's unclear from your clarification, but a landlord might
actually be in violation of New York General Obligations Law if he
withdrew any moneys from a security deposit before the end of a
tenancy. In other words, if your landlord deducted a "late fee" from
your security deposit during the term of lease, rather than at lease's
end, he might be in violation of New York General Obligations Law.

You're right that the Ohio Landlord-Tenant Law (ORC 5321.16)  states
that if a security deposit is wrongfully withheld, that a tenant has
the right to sue for double the amount wrongfully witheld and for
reasonable attorney's fees. Unfortunately, no such law applies in New
York.

Based on my research, my suggestions again would be to first pursue
the matter with the State Attorney General's Office, and then, if
necessary, through Small Claims Court.  A key factor, as I already
mentioned, will be to obtain a copy of the lease you signed.  Again,
best of luck with this.

rico